Jamnalal vs. The State Of Rajasthan

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2025 INSC 935

CRIMINAL APPEAL NO. OF 2025
(@ SPECIAL LEAVE PETITION (CRL.) NO.69 OF 2025)


JAMNALAL …APPELLANT (S)

VERSUS

STATE OF RAJASTHAN
AND ANOTHER …RESPONDENT(S)


J U D G M E N T

K.V. Viswanathan, J.
1. Leave granted.
2. We have heard Mr. K.L. Janjani, learned counsel for the
appellant, Ms. Sansriti Pathak, learned Additional Advocate General
for the first Respondent - State of Rajasthan, and Mr. Namit Saxena,
learned counsel for Respondent No.2.
3. The present Appeal by the father of the prosecutrix challenges
the order of the High Court of Judicature for Rajasthan, Bench at
Signature Not Verified
Digitally signed by
BORRA LM VALLI
Date: 2025.08.06
15:56:37 IST
Reason:
Jaipur dated 03.09.2024 in S.B. Criminal Misc. Suspension of
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Sentence Application (Appeal) No. 852 of 2024 in S.B. Criminal
Appeal No. 397 of 2024. By the said order, the sentence imposed on
Respondent No.2 herein was suspended till the final disposal of the
appeal and Respondent No.2 was directed to be released on bail,
subject to certain conditions imposed on him by Special Judge
(POCSO) Karauli (Rajasthan) by her judgment and order dated
07.02.2024.
4. Respondent No.2 has been found guilty for the offences
punishable under Section 3/4 (2) of the Protection of Children from
Sexual Offences Act, 2012 (for short ‘POCSO Act’) as well as under
Section 376(3) of the Indian Penal Code, 1860. Respondent No.2 was
sentenced under Section 3/4 (2) of POCSO Act and no sentence was
imposed under Section 376(3) in view of Section 42 of POCSO Act.
Insofar as Section 3/4 (2) of POCSO Act was concerned, Respondent
No.2 was sentenced to undergo 20 years rigorous imprisonment and
was ordered to pay a fine of Rs. 50,000/-. In default of payment of
fine, Respondent No.2 was directed to undergo additional 2 years
rigorous imprisonment. Respondent No.2 had undergone
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imprisonment for a period of 1 year and 3 months after which his
sentence was suspended by the High Court.
5. The High Court while suspending the sentence, after setting out
the contention of the respective parties, has recorded only the
following reasons before enlarging Respondent No.2 on bail:
“5. Upon a consideration of the arguments advanced on behalf of
the appellant as well as learned State Counsel and counsel for the
complainant and having regard to the facts and circumstances as
available on the record and especially the fact that no sign of sexual
assault was found by the medical expert on the body of the
prosecutrix; no FSL as well as DNA report is available on record;
despite the availability of washrooms in the house, it is little
difficult to digest that prosecutrix will go out for toilet; there is no
prospect of being heard and disposal of this appeal in near future,
this Court is of the opinion that the appellant has available to him
strong grounds to assail the impugned judgment of conviction and
sentence. Thus, it is a fit case for suspending the sentences awarded
to the applicant-appellant during pendency of the instant appeal.”

6. The Trial Court, while convicting Respondent No.2, relied on
the evidence of prosecutrix PW-3 who had deposed to the following
effect: - On 13.06.2023, at 4 PM, when she had gone to the field to
defecate, Respondent No.2 came from behind and at gun point after
closing her mouth took her to Amro’s house near the dry tank located
in the field. Thereafter, the prosecutrix deposed that Respondent No.2
committed rape on her; that she came back and narrated the incident
to her mother and other family members; that her father had gone out
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at that time and he came little while thereafter; that she went with her
father to the police station where her father lodged the First
Information Report. She also deposed that she was medically
examined, and she had given her undergarments and Pajama to the
Doctor. The statement under Section 164 of Code of Criminal
Procedure, 1973 (for short ‘Cr.P.C’) was recorded earlier where she
maintained her case against Respondent No.2. She further deposed
that Respondent No.2 had forcibly removed her clothes and laid her
on the mattress on the cot on the ground floor of the house.
7. The Trial Court found that no material contradictions had
emerged in the evidence. The Trial Court further relied on the
evidence of the mother of the prosecutrix-PW-2 and father PW-4.
Dealing with the age of the victim, the Trial Court, by relying on the
admission application filled for admission to the school (Exhibit P-1)
the original school record register (Exhibit P-2) as well as the birth
certificate (Exhibit P-9), came to the conclusion that the prosecutrix
was a child under Section 2(d) of POCSO Act, since the date of birth
was 07.03.2009. The date of incident being 13.06.2023, the victim
was 14 years and 3 months of age. According to the Trial Court, the
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documentary evidence fulfilled the parameters set out under Section
94 of the Juvenile Justice (Care and Protection of Children) Act,
2015.
8. Dealing with the medical evidence, the Trial Court stated that
the prosecutrix was medically examined and the evidence was to the
effect that no external visible injury was found on the body and
genitals of the victim and her hymen was in an old torn healed state.
The medical evidence was to the effect that no conclusive opinion
about the crime could be given and FSL report was kept awaited for
further opinion.
9. The Trial Court also noticed that the prosecution did not furnish
the FSL and DNA report till the Trial was over. However, the Court
held that the case was not adversely affected, since DNA report could
only be corroborative in nature. The Trial Court raised the
presumption under Section 29 and 30 of POCSO Act to presume that
unless the contrary was proved, it was the accused who had
committed the offence.
10. One would have expected the High Court hearing an application
under Section 389 of Cr.P.C. for suspension of sentence to examine
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whether prima facie there was anything palpable on the record to
indicate if the accused had a fair chance of overturning the conviction.
1
In Omprakash Sahni v. Jai Shankar Chaudhary and Another , this
Court had the following to say on the scope of Section 389 of the
Cr.P.C.
“23. The principle underlying the theory of criminal jurisprudence in
our country is that an accused is presumed to be innocent till he is
held guilty by a court of competent jurisdiction. Once the accused is
held guilty, the presumption of innocence gets erased. In the same
manner, if the accused is acquitted, then the presumption of
innocence gets further fortified.

24. From perusal of Section 389 CrPC, it is evident that save and
except the matter falling under the category of sub-section (3) neither
any specific principle of law is laid down nor any criteria has been
fixed for consideration of the prayer of the convict and further,
having a judgment of conviction erasing the presumption leaning in
favour of the accused regarding innocence till contrary recorded by
the court of competent jurisdiction, and in the aforesaid background,
there happens to be a fine distinction between the prayer for bail at
the pre-conviction as well as the post-conviction stage viz. Sections
437, 438, 439 and 389(1) CrPC.

33. Bearing in mind the aforesaid principles of law, the endeavour on
the part of the court, therefore, should be to see as to whether the
case presented by the prosecution and accepted by the trial court can
be said to be a case in which, ultimately the convict stands for fair
chances of acquittal. If the answer to the abovesaid question is to be
in the affirmative, as a necessary corollary, we shall have to say that,
if ultimately the convict appears to be entitled to have an acquittal at
the hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which usually takes
very long for decision and disposal. However, while undertaking the
exercise to ascertain whether the convict has fair chances of
acquittal, what is to be looked into is something palpable. To put it in

1
(2023) 6 SCC 123

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other words, something which is very apparent or gross on the face
of the record, on the basis of which, the court can arrive at a prima
facie satisfaction that the conviction may not be sustainable. The
appellate court should not reappreciate the evidence at the stage of
Section 389 CrPC and try to pick up a few lacunae or loopholes here
or there in the case of the prosecution. Such would not be a correct
approach.”

11. The State has also filed an affidavit before us setting out the
criminal antecedents of Respondent No.2, including details about the
cases in which he has been acquitted. Out of the 11 cases mentioned
in the Chart, 5 have ended in acquittal and 6 are pending. The chart is
set out hereinbelow: -

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12. Taking into account the fact that the High Court has not
adverted to any of the relevant factors for considering the case for
suspension under Section 389 and keeping in mind the antecedents,
we are of the opinion that High Court was not justified in suspending
the sentence.
13. In the affidavit filed before us, Respondent No.2 has contended
that there is no allegation of post-bail misconduct or breach of
conditions warranting the setting aside of the bail order. The
submission is fallacious. There is clear distinction in law between
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setting aside of the bail by a higher Court and cancellation of the bail.
While cancellation of bail is due to some supervening circumstances
like breach of bail condition, setting aside of the bail is concerned not
with the breach of condition but with the justifiability and soundness
of the order granting bail (See Neeru Yadav v. State of Uttar Pradesh
2
and Another ).
14. It has been further contended that there was lack of
corroborative medical and forensic evidence. The State, in its counter
affidavit, averred that the FSL/DNA report could not be presented by
the prosecution before the conclusion of trial and that the FSL report
which has since been received does mention the presence of male
DNA/semen of the accused on the private part and underwear of the
victim. We are not inclined to comment one way or the other on the
merits of the FSL report and we leave it to the prosecution if it so
desires to resort to such legally permissible procedure as is available
in law to bring the same on record.
15. Independent of the FSL and DNA report and considering the
nature of the case and the antecedents of Respondent No.2 and after

2
(2014) 16 SCC 508
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carefully examining the judgment of conviction, we feel that the High
Court was not justified in suspending the sentence.
16. The reasoning of the High Court, set out above, falls far short of
the parameters required under Section 389 of Cr.P.C. for enlargement
of a convict, punished for heinous offence, on bail after suspending
the sentence. The finding that no sexual assault was found, without
considering the overall nature of the evidence of the case, is
completely untenable. According to the evidence of the prosecutrix,
Respondent No.2, at gunpoint, closed her mouth and forcibly took her
to the house of Amro and committed rape on her. All that the medical
evidence said was that no conclusive opinion about the crime could be
given since FSL Report was awaited. That does not mean that the
ocular evidence could be ignored. As far as non-availability of FSL
Report is concerned, the prosecution has explained the situation and
the Trial Court has also found that the non-availability of the DNA
Report did not adversely affect the case of the prosecution. The
reasoning that despite the availability of washrooms in the house it
was difficult to believe that the prosecutrix could go out for the toilet,
is conjectural in nature.
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17. In Vijay Kumar v. Narendra and Others this Court observed
as follows:
“10. On perusal of the record and on consideration of the
submissions made by the learned counsel appearing for the parties,
we are of the view that in the context of the facts and circumstances
of the case the High Court was in error in passing the order
releasing the respondents on bail. The High Court has neither given
any reason nor has indicated any exceptional circumstance for
granting bail to the respondents. In the above circumstances, it is
difficult for us to even surmise the circumstance which prompted
the learned Single Judge to consider the accused persons to be
entitled to the discretionary relief of bail pending the appeal. The
principle is well settled that in considering the prayer for bail in a
case involving a serious offence like murder punishable under
Section 302 IPC, the court should consider the relevant factors like
the nature of the accusation made against the accused, the manner
in which the crime is alleged to have been committed, the gravity of
the offence, and the desirability of releasing the accused on bail
after they have been convicted for committing the serious offence
of murder. Our attention has not been drawn to any material which
would show that the learned Single Judge took into consideration
the relevant factors while passing the bail order. We refrain
ourselves from making any observation touching on merits of the
case lest it may prejudice any of the parties. Suffice it to state that
we do not consider this a fit case for grant of bail to the respondents
during pendency of the appeal filed by them.”

Though said in the context of Section 302 IPC, it applies with equal
force to a case of the present nature under the POCSO Act, also.
18. We make it clear that the observations made herein are only for
the purpose of setting aside the order of suspension of sentence.

3
(2002) 9 SCC 364
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19. In view of what has been stated hereinabove, we set aside the
order of the High Court dated 03.09.2024 in S.B. Criminal Misc.
Suspension of Sentence Application (Appeal) No. 852 of 2024 in S.B.
Criminal Appeal No. 397 of 2024. The appeal is allowed. Respondent
No.2 is directed to surrender before the Court of Special Judge
th
(POCSO) Karauli, (Rajasthan), on or before 30 August 2025, failing
which, the State shall take Respondent No.2 into custody.


……….........................J.
[ B.V. NAGARATHNA ]



……….........................J.
[ K. V. VISWANATHAN ]
New Delhi;
th
6 August, 2025
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